As 2023 wraps up, it’s worth a look back at what has been a defining year for whistleblowers.
After the flood of pandemic-related stimulus money, 2023 saw a series of prosecutions related to misuse of those funds — brought to light by people who spoke up about the fraudulent use of public money. Whistleblowers also continued to alert the government to troubling allegations of fraud in the health care system, one of the government’s largest single expenses.
Whistleblowers received millions of dollars in awards for alerting the government to various types of fraud, which come out of money recouped from violators. The U.S. Department of Justice alone reported paying whistleblowers more than $488 million in False Claims Act awards.
And, seeing the difference whistleblowers can make, advocates spoke up about the need for the nation’s patchwork of whistleblower laws to extend to more applications or urge more activity to stop fraud in industries such as cybersecurity, cryptocurrency, and wildfire/environmental protection.
On a separate track, court decisions have set out new guidance in whistleblower law. The nation’s highest court, the U.S. Supreme Court, has taken up cases that will guide all future whistleblower actions.
One case related to when whistleblowers, represented by their own attorneys — such as the experienced whistleblower attorneys at Keller Grover — may pursue a False Claims Act case after the government opts out. The Supreme Court affirmed that the Justice Department has broad discretion to intervene in a False Claims Act case after previously declining to intervene — even to the point of moving that a case be dismissed. Since the decision came down in June 2023, the Justice Department has indicated it does not plan to use this authority broadly.
This is significant because these so-called “non-intervened” cases account for an increasing percentage of the government’s overall recovery in False Claims Act cases, according to a report this year. Although money recovered from False Claims Act cases pursued by the government decreased each of the past six years, the Justice Department reported its second-highest recovery level ever in its latest annual report — more than $2.2 billion. More than $1.9 billion of that resulted from “non-intervened” cases.
In another significant decision, the Supreme Court unanimously confirmed that liability under the False Claims Act is not dependent on what an objectively reasonable person could have known or believed to be false, as crafted by lawyers after the fact. Rather, it depends on a defendant’s subjective belief as to whether a claim was false at the time the claim was made.
Meanwhile, in an ongoing case, the court will decide whether whistleblowers suing former employers for retaliation must prove retaliatory intent. We’ll continue tracking this in 2024.
In California, the state Supreme Court affirmed that employees who report labor law violations that were previously known still are protected by anti-retaliation provisions.
Obviously, it’s been an eventful year for whistleblower law, and because the landscape is dynamic, it can be hard to know where to start if you notice wrongdoing in your workplace. Keller Grover offers potential whistleblowers free and confidential consultations. With our proven track record of advocating for whistleblowers, we can help you understand all your options, protections, and best next steps. In more than 25 years litigating fraud and employment cases, Keller Grover has recovered billions for its clients.
In addition to contacting us for more information, you can also read more on our website about becoming a whistleblower:
- I Saw Something Fishy at Work: How Can I Become a Whistleblower?
- Frequently Asked Questions about Becoming a Whistleblower
- Whistleblower 101: What Is The False Claims Act and How Can It Help Me If I Witness Fraud?
- Whistleblower 101: How to Report Financial and Securities Fraud
- Whistleblower cases can pit David versus Goliath — prepare yourself with the right strategy